May 1, 2014
Amanda Lee Myers, The Associated Press

CINCINNATI – An appeals court heard arguments Thursday over whether a gossip website should have been immune from a defamation lawsuit brought by a former Cincinnati Bengals cheerleader, a case that Internet giants such as Google and Facebook are watching closely.

Nik Richie, owner of The Dirty, based in Scottsdale, Arizona, should have been granted immunity in the case under a 1996 federal law that provides broad immunity to websites, his attorney argued to a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati.

Former Bengals cheerleader Sarah Jones, also a former high school teacher in northern Kentucky, sued Richie in December 2012 over posts about her and her ex-husband’s sexual history. Jones, 29, said the posts were untrue and caused mental anguish and embarrassment.

In July, after federal Judge William Bertelsman rejected arguments that Richie should be granted immunity, jurors found that the posts about Jones were substantially false and that Richie had acted with malice or reckless disregard by publishing them. They awarded Jones $338,000.

The posts about Jones were unrelated to a criminal case that emerged against her in March 2012 in which she was accused of having sex with a teenage former student. Jones later pleaded guilty to sexual misconduct and custodial interference as part of a plea deal that allowed her to avoid jail time but prohibited her from teaching again.

Jones and the student, then 17, say they’re engaged to be married.

Richie, 35, is asking the 6th Circuit to find that Bertelsman should never have allowed Jones’ lawsuit against him, which would nullify the verdict. The court could rule at any time.

In November, some of the Internet’s heaviest hitters said that if Bertelsman’s decision is upheld, the case has the potential to “significantly chill online speech.”

“If websites are subject to liability for failing to remove third-party content whenever someone objects, they will be subject to the ‘heckler’s veto,’ giving anyone who complains unfettered power to censor speech,” according to briefs filed Nov. 19 by lawyers for Facebook, Google, Microsoft, Twitter, Amazon, Gawker and BuzzFeed, among others.

After Thursday’s arguments, Richie’s attorney reiterated the magnitude of the case.

“If Judge Bertelsman’s ruling stands, the Internet will have a nuclear meltdown,” Arizona attorney David Gingras said. “It’ll change the rules across the board for everyone. … Mark Zuckerberg could be dragged into court for what users post on Facebook.”

Thursday’s arguments centred on the federal Communications Decency Act, passed in 1996 to give websites immunity from liability for content posted by users. Judges and courts across the country have upheld the law in hundreds of cases, including other lawsuits involving Richie’s website.

But Bertelsman has ruled four times against Richie’s arguments involving the Communications Decency Act, finding that the very name of Richie’s website, the way he manages it and the personal comments that he adds to many posts all encourage offensive content.

Richie’s website allows users to submit posts — anonymously if they want — about anyone from the girl next door to professional athletes and politicians, often accusing them of promiscuity, criticizing their plastic surgery or picking apart their looks. Richie screens each post, decides what goes up and often adds his own commentary.